FILED

United States Court of Appeals

Tenth Circuit

May 20, 2008

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 06-5234

HASAN ALI HASAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Oklahoma
(D.C. No. CR-05-174-JHP)

Barry L. Derryberry , Research & Writing Specialist, Office of the Federal Public
Defender (John V. Butcher, Federal Public Defender, and Shannon M. McMurray,
Assistant Federal Public Defender, with him on the briefs), Tulsa, Oklahoma, for
Defendant-Appellant.
Stephen L. Sewell, Assistant United States Attorney (David E. OMeilia, United
States Attorney, and Thomas Scott Woodward, Assistant United States Attorney,
on the brief), Tulsa, Oklahoma, for the Plaintiff-Appellee.

Before HENRY, Chief Judge, HOLLOWAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Seeking refuge from the civil war in Somalia, Hasan Ali Hasan fled to the
United States and was granted asylum in 1997. Over the years that followed, Mr.
Hasan sought to learn English, moved to Oklahoma, worked there as a school bus
driver, and married an American. In 2004, a federal immigration agent
interviewed Mr. Hasan about statements he made in connection with his 1997
asylum application. In 2005, Mr. Hasan was called to testify before two different
grand juries investigating the truthfulness of the information he provided during
the 2004 interview. Ultimately, the second grand jury indicted Mr. Hasan, not for
lying during the 2004 interview or in his 1997 asylum application, but for perjury
during the grand jury proceedings themselves. Mr. Hasan was tried, convicted on
three counts of perjury, acquitted on a fourth, and sentenced to fifteen months in
prison.
Before us, Mr. Hasan argues, among other things, that Congress, in the
Court Interpreters Act (CIA), afforded him the right to an interpreter during the
grand jury proceedings, that his alleged perjury was really the product of
language difficulties he encountered without the assistance Congress guaranteed,
and that the appropriate remedy for this statutory violation is the dismissal of the
charges brought against him. The district court initially determined that the
governments failure to offer an interpreter during grand jury proceedings was not
error, and that no interpreter was needed at trial either. Later, however, the
district court reversed itself on the latter score, holding that the presence of an
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interpreter at trial was required to protect Mr. Hasans right to a fair trial. The
court did not, however, reconsider whether the CIA also required an interpreter at
the grand jury proceedings. Because the statute applies with equal force to grand
jury proceedings and trials, we think this omission rises to the level of plain error.
While it is possible to imagine reasons for the result the district court reached
requiring an interpreter in one setting but not the other no such reasons are
apparent from the record as it stands before us. In deference to Congresss
statutory command in the CIA, we therefore remand the matter to the district
court so that it might ascertain whether the factors that motivated it to reconsider
its ruling about the necessity of an interpreter at trial also pertain to the grand
jury context.
I
A
In 1997, Hasan Ali Hasan entered the United States as a 17 year old
seeking refuge from the Somalian civil war. 1 Citing persecution he and his family
had suffered during the conflict and fear that persecution would resume if he
returned to Somalia, Mr. Hasan applied for and was granted asylum in the United
States later that same year. It is undisputed that Mr. Hasan is a native Somali
1

Somalias central government collapsed in 1991, and subsequent fighting

among rival factions resulted in the killing, dislocation and starvation of
thousands of Somalis; racial minority groups were subjected to harassment,
intimidation, and abuse by armed gunmen of all affiliations. U.S. Department of
State, Somalia Country Report on Human Rights Practices for 1997.
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speaker and, at the time he entered this country, communicated with government
officials exclusively through an interpreter.
In order to obtain asylum, Mr. Hasan on several different occasions had to
describe the persecution that he and his family suffered. In a June 5, 1997
interview, and with the aid of an interpreter, Mr. Hasan stated that four of his
brothers and his father were killed in a tribal war two years earlier, and that
another brother had been killed five years earlier. In his written application for
asylum, submitted on July 8, 1997, and prepared with the assistance of an
immigration attorney, Mr. Hasan represented that three of his older brothers were
killed by another clan in 1995, and that his father was shot in the knee in 1996.
Despite these inconsistencies about the violence directed at his family, Mr.
Hasans asylum application was granted. In the years that followed, Mr. Hasan
met his wife, an American who does not speak Somali, and moved to Oklahoma
where Mr. Hasan obtained a commercial drivers license and employment as a
school bus driver.
In 2004, David Kinnear, a special agent with the Department of Homeland
Securitys Office of Immigration and Customs Enforcement, reviewed Mr.
Hasans file at the request of the Federal Bureau of Investigation. Although the
reasons motivating this review are not clear in the record before us, on conducting
the review Agent Kinnear noticed various inconsistencies in Mr. Hasans 1997
statements and sought and received an interview with Mr. Hasan. The next year,
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in April 2005 and then again in November 2005, Mr. Hasan was subpoenaed to
testify before a federal grand jury. The grand jury was charged to investigate
possible false statements, in violation of 18 U.S.C. 1001, made by Mr. Hasan in
his 2004 interview with Agent Kinnear. Mr. Hasan did not retain counsel to assist
him in preparing for either appearance.
At several points during the grand jury proceedings, Mr. Hasans command
of the English language appeared to be in question, some examples of which can
be found in Appendix A. To pluck but one here, at the conclusion of his April
testimony Mr. Hasan was asked whether he understood the questions he had been
asked. Mr. Hasan responded that, while he had attended five semesters of ESL
(English as a Second Language) classes since entering the United States, he had
difficulty understanding some of the questions asked of him:
Q:
A:
...
Q:
A:

Q:
A:

Is there have you been able to understand what I have asked you?
Not sure about it, but I try to understand it.
So youre pretty able to understand what people say to you in English?
Not, like, 100 percent. I can say, like, 40 percent and if I dont
understand, I tell them, Whats that mean? Theres a lot of words that
are hard for me, I cant understand it.
Okay. Was there anything that I failed to explain to you so that you felt
like you understood it?
Most of them.

Addendum of Exhibits, Govt Ex. 6 at 40-41. 2

The grand jury proceedings we reference were unsealed by order of the

district court. See Fed. R. Crim. P. 6(e)(3)(E).
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To be sure, the government notes that elsewhere in the transcripts one can
find instances where Mr. Hasan appeared more definite about his English ability;
for example, testifying at the conclusion of his November appearance, Mr. Hasan
represented that he thought he understood everything that was asked of him:
Q:

A:
Q:
A:

(By Mr. Woodward) Mr. Hasan, I would like to ask you whether you
would like to change any of the answers that youve given to the Grand
Jury today, whether you would like to add to them or change them in
any way while you have an opportunity to do that?
No.
Do you think you understood everything I asked you today?
Yeah, I think so.

Id., Govt Ex. 7 at 42.

In December 2005, the government sought and received an indictment
against Mr. Hasan for perjury. It did so not under 18 U.S.C. 1001, based on
either Mr. Hasans representations in connection with his asylum application or
his statements to Agent Kinnear, but instead pursued alleged discrepancies in Mr.
Hasans grand jury testimony, proceeding under 18 U.S.C. 1623. Count I of the
indictment cited allegedly conflicting statements regarding which of Mr. Hasans
brothers had been shot and killed in the Somalian civil war. See Appendix B
(providing challenged testimony). Count II charged Mr. Hasan with making false
statements to the jury regarding violence directed against his sister in Somalia.
See id. Count III related to inconsistent statements that Mr. Hasan made about a
beating that he allegedly received in Somalia. See id. Finally, Count IV

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concerned allegedly inconsistent statements regarding Mr. Hasans family name.

See id.
B
During pretrial proceedings, Mr. Hasan filed two motions relevant for our
current purposes. First, he moved to suppress evidence taken from him during the
grand jury proceedings his testimony and submitted that, without it, the
governments indictment lacked any evidentiary basis and had to be dismissed.
Mr. Hasan contended suppression of his testimony was required because, during
the grand jury proceedings, he was only summarily advised of his Fifth
Amendment rights to remain silent and to due process, and that he could not
have knowingly and intelligently waived these rights given his limited
understanding of English.
Second, Mr. Hasan filed a separate motion pursuant to the CIA, 28 U.S.C.
1827, to secure the services of an interpreter during trial. The CIA makes
appointment of an interpreter mandatory when the presiding judicial officer
determines that a party or a witness (1) speaks only or primarily a language other
than English, (2) so that his ability to comprehend and communicate during the
proceedings would be inhibited. 3
3

The CIA provides, in relevant part:

The presiding judicial officer . . . shall utilize the services of the most
available certified interpreter, or when no certified interpreter is
(continued...)
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With respect to the first CIA test, Mr. Hasan argued that his primary
language was Somali, and pointed out in his brief that the government had not
contended otherwise. With respect to the second statutory test, Mr. Hasan
proffered the testimony of Dr. Gene Halleck, a linguistics expert, who testified at
a pretrial hearing that Mr. Hasans limited English abilities would prevent him
from participating meaningfully in his defense without the aid of an interpreter.
Dr. Halleck also testified that Mr. Hasan had never been properly educated in his
native language of Somali, making it more difficult for him to learn and
understand a second language. For its part, the government presented several
federal agents who had interacted with Mr. Hasan and who testified that they
were able to understand him with little or no difficulty.

(...continued)
reasonably available . . . the services of an otherwise qualified
interpreter, in judicial proceedings instituted by the United States, if the
presiding judicial officer determines . . . that [a] party . . . or a witness
who may present testimony in such judicial proceedings(A) speaks only or primarily a language other than the English
language; or
(B) suffers from a hearing impairment (whether or not suffering also
from a speech impairment)
so as to inhibit such partys comprehension of the proceedings or
communication with counsel or the presiding judicial officer, or so as
to inhibit such witness comprehension of questions and the
presentation of such testimony.
28 U.S.C. 1827(d)(1).
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On March 13, 2006, the district court denied both motions. With respect to
the motion to suppress evidence and dismiss the indictment, the court noted that
at both grand jury proceedings the government had amply advised Mr. Hasan of
his Fifth Amendment rights, as well as the consequences of perjury; that Mr.
Hasan affirmatively indicated that he understood those rights and potential
consequences; and that he never requested an interpreter at any point during those
proceedings.
With respect to the motion seeking an interpreter at trial pursuant to the
CIA, the court found that Mr. Hasan failed at the first statutory step namely,
that he did not speak only or primarily a language other than English. In reaching
its decision, the district court relied on, among other things, the fact that Mr.
Hasan had been in the United States for nine years; had been employed both as a
security guard and as a school bus driver, occupations that required him to
communicate in English; and had taken five English proficiency courses, as well
as two commercial driving tests (passing both), in English. R., Vol. I, Doc. 56 at
4-5 (D. Ct. Order). The court further reasoned that Mr. Hasan speaks English
on a daily basis, because his wife does not speak Somali, and held that there was
no evidence developed before it that Mr. Hasan was any more proficient in his
native language of Somali than he was in English. Id. at 5.

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C
Three days after the court issued its rulings, on March 16, 2006, Mr. Hasan
filed a motion to reconsider. This motion was limited to revisiting the question
whether an interpreter during trial should be appointed under the CIA and did not
seek to revisit his Fifth Amendment-based motion to dismiss. Mr. Hasan pointed
again to Dr. Hallecks testimony, proffering that she could testify further about
the unlikelihood that a post-pubescent individual such as Mr. Hasan would ever
be able to master a secondary language to a greater degree than his native
language, and also offered the testimony of Mr. Hasans wife that he continued to
communicate daily in Somali, both over the phone and in written form. On March
17, the district court denied the motion to reconsider.
During this period, the government filed two motions seeking to exclude
Dr. Hallecks testimony on Daubert grounds. The first motion, filed during the
pendency of Mr. Hasans CIA motion, sought to have her testimony at the pretrial
hearing on the need for an interpreter disregarded and also to have her precluded
from testifying at trial about Mr. Hasans language abilities. R., Vol. I, Doc. 48.
The second motion, captioned a Supplemental Motion, renewed the objection to
Dr. Hallecks testimony at trial. R., Vol. I, Doc. 76. While the district court
declined to rule that Dr. Hallecks pretrial testimony should be disregarded with
respect to the need for an interpreter, D. Ct. Order at 3, on April 12, it granted the
governments Daubert motion with respect to trial.
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In this same order, however, the district court proceeded, sua sponte, to
reconsider the question whether an interpreter should be present at trial, this time
holding one was necessary. R., Vol. I, Doc. 85. In reaching this conclusion,
moreover, the court expressly relied on Dr. Hallecks expert report, explaining
that,
[a]fter reviewing the report of Halleck, however, this Court has reconsidered
its previous order denying the Defendants Motion for an Interpreter. While
it is clearly a question of fact for the jury whether or not the defendant
understood the questions asked during the grand jury proceedings, it is this
Courts duty to ensure the Defendants rights to due process during these
proceedings are not infringed.
Id. at 8. 4 The district court then proceeded to express concern about Mr. Hasans
ability to communicate effectively with counsel, noting that [d]efense counsel, as
an officer of the court, has indicated that he is having difficulty communicating
with his client, id.; the district court also expressed concern about Mr. Hasans
ability to keep up with conversations in the courtroom, explaining that since
witnesses have a tendency to speak rapidly when under the stress of the witness
stand and attorneys generally speed up their questions as the witnesses answers
become quicker, this Court finds the best way to ensure that the defendants
constitutional rights are protected is to appoint an interpreter, id.

Though it successfully excluded her from trial, the government does not
challenge before us the district courts reliance on Dr. Hallecks expert report in
connection with its pretrial decisions regarding whether to appoint an interpreter.
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At the trial that followed, Mr. Hasan was convicted of the first three counts
of the indictment but acquitted on the fourth, and later sentenced to fifteen
months imprisonment and three years of supervised release on each count, to run
concurrently.
II
On appeal, Mr. Hasan seeks dismissal of the indictment against him. He
contends that the prosecutor conducting the grand jury proceedings had an
obligation under the CIA to provide him with an interpreter during those
proceedings. Because the prosecutor failed to do so, Mr. Hasan submits, the
appropriate remedy is the suppression of the grand jury transcripts and, without
the benefit of the grand jury proceedings, his indictment lacks an evidentiary
basis and should be dismissed. 5
5

While we have held that a district courts factual findings in connection

with motions for an interpreter pursuant to the CIA must be made on the record,
United States v. Osuna, 189 F.3d 1289, 1292, 1294 (10th Cir. 1999), we do not
understand Mr. Hasan to be arguing that the prosecutor during grand jury
proceedings has an obligation to make similar factual findings on the record.
Neither would we endorse such an argument; requiring factual findings by a
prosecutor at a grand jury proceeding would be exceedingly odd. Grand jury
proceedings are not adversarial proceedings where parties may present competing
evidence and, unlike a district court judge, the presiding judicial officer at the
grand jury, the prosecutor, is hardly well suited to issue neutral factual findings.
That said, nothing precludes the prosecutor conducting grand jury proceedings
from asking questions designed to make a record with respect to the CIAs two
statutory tests; in fact, doing so may well be the prudent course in order to
minimize the number of challenges like this one in cases where language
difficulties are apparent. But, ultimately, in cases like this one challenging an
indictment in district court on the basis that the prosecutor failed to supply an
(continued...)
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Before reaching the merits of this argument, we must address an antecedent

question implicating our standard of review. We traditionally review a district
courts denial of a motion to dismiss an indictment for abuse of discretion.
United States v. Alcaraz-Arellano, 441 F.3d 1252, 1265 (10th Cir. 2006). But
when a party fails to preserve an issue before the district court, our review is
more circumscribed, limited to ascertaining whether the error charged on appeal
qualifies as plain error. United States v. Taylor, 514 F.3d 1092, 1096 (10th Cir.
2008). Rather unusually, the parties before us both seek to concede the standard
of review to the other side.
For his part, Mr. Hasan readily admits that, although he seeks the same
remedy as he did in pretrial proceedings before the district court (dismissal of the
indictment), the vehicle he seeks to employ to get there is now very different and,
from this, concludes that our review should be only for plain error. Before the
district court, Mr. Hasans motion to dismiss rested exclusively on the contention
that he was not fairly advised of and failed to understand his Fifth Amendment
rights during the grand jury proceedings. The district court found that, whatever
other difficulties Mr. Hasan may have had during those proceedings, he was well
advised of his rights under the Fifth Amendment and did seem to understand
5

(...continued)
interpreter during grand jury proceedings in conformance with the CIA we will
continue to rely on the district court to conduct an independent inquiry into
whether the grand jury proceedings conformed to the statute and to make factual
findings in aid of its decision.
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them; Mr. Hasan does not contest the district courts holding on that score.
Instead, on appeal Mr. Hasan argues that the government had an obligation under
the CIA to supply him with an interpreter during the grand jury proceedings.
While Mr. Hasan raised the CIA in pretrial proceedings, he did so only in the
context of suggesting that the district court itself had a statutory obligation to
appoint an interpreter during trial; at no point did Mr. Hasan argue, as he now
does, that (i) the CIA pertained to grand jury proceedings, (ii) the prosecutor
conducting the grand jury had an affirmative obligation under that statute to
consider the need for an interpreter, or (iii) his failure to do so formed a basis for
suppressing evidence taken in those proceedings and dismissing the indictment.
For its part, the government submits that abuse of discretion review
controls. In aid of its position, one might well note that the district court initially
ruled on both of Mr. Hasans pretrial motions for an interpreter in a single order,
perhaps suggesting, as the government represents with its concession, that the
parties and district court were on notice of the need to consider not just the Fifth
Amendment but also the CIAs applicability to the grand jury proceedings.
We appreciate the parties candor and the professionalism it represents.
Happily, however, we need not decide whose concession is correct because we
conclude that Mr. Hasan prevails under even the more exacting standard he
proposes. To warrant relief under our plain error standard of review, an appellant
must show not just (a) the existence of an error, but also that the error is (b) plain,
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and (c) affects the substantial rights of the appellant, as well as (d) the fairness,
integrity, or public reputation of judicial proceedings. Taylor, 514 F.3d at 1100.
In what follows, we explain why we believe Mr. Hasan has managed to clear each
of these hurdles.
III
A
The error we see here is an apparently inconsistent application of the CIA.
In its March 13, 2006 ruling, the district court found that Mr. Hasans primary
language was English, the first and a dispositive inquiry under the CIA, making
the appointment of an interpreter before the grand jury or at trial unnecessary.
Yet, in its April 12, 2006 ruling, the district court reconsidered its previous denial
of Mr. Hasans motion for an interpreter at trial a motion expressly pressed
under the CIA and held that an interpreter was required. In doing so, the
district court emphasized Mr. Hasans difficulties comprehending the proceedings
and fairness concerns, essentially tracking the second step of the CIA. And
because the court found that the second step was met and proceeded to appoint an
interpreter, it appears that the district court implicitly changed its view on the
first step (namely, deciding that Mr. Hasans primary language was other than
English). Yet, having found that the CIA required an interpreter at trial, the court
did not pause to (re)consider whether an interpreter had also been necessary
before the grand jury.
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The difficulty with this series of events is the fact that the CIA admits no
distinction between the grand jury and trial contexts. In 1988, Congress amended
the CIA, originally enacted in 1978, specifically to extend the statutes guarantees
from the trial context to grand jury proceedings. See Judicial Improvements and
Access to Justice Act, Pub. L. No. 100-702, 708, 710, 102 Stat. 4642 (1988).
It did so by requiring the presiding judicial officer at any judicial proceedings
instituted by the United States to provide an interpreter when the statutes test is
met, 28 U.S.C. 1827(d)(1), replacing statutory language that previously required
the appointment of an interpreter only at criminal or civil action[s] initiated by
the United States in a United States district court, Court Interpreters Act, Pub. L.
No. 95-539 2(a), 92 Stat. 2040 (1978). Lest any confusion remain, Congress
then proceeded to define the term judicial proceedings instituted by the United
States to embrace grand jury proceedings. 28 U.S.C. 1827(j). 6
Given the clarity and strength of Congresss instruction that the CIA
provides a uniform test and guarantee, applicable to grand jury and trial
6

The parties before us agree that the CIA makes the presiding judicial
officer at grand jury proceedings the United States Attorney, 28 U.S.C.
1827(i), and that the presiding judicial officer bears the affirmative
responsibility under the CIA to consider the need for an interpreter when
language difficulties become apparent. See Osuna, 189 F.3d at 1292, 1294. The
government likewise has not contested that, if it failed to comply with the CIA,
the appropriate remedy in this case is the suppression of the grand jury transcripts
and that, without those transcripts, dismissal of the indictment follows. The
government does not argue, for example, that a remedy other than suppression of
the transcripts would be more appropriate, or that the indictment could survive
without them.
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proceedings alike, once the district court sua sponte reversed itself and found that
an interpreter was required at trial in response to Mr. Hasans CIA-based motions,
we see no way it could avoid revisiting the lack of an interpreter during Mr.
Hasans grand jury testimony. If Mr. Hasan had so much difficulty
communicating with his own (friendly) counsel at trial that an interpreter was
needed, one cannot help but wonder: was Mr. Hasans ability to communicate
with a (decidedly less friendly) prosecutor during grand jury proceedings
similarly impaired? Neither can this apparent contradiction be dismissed as
inconsequential. While the lack of an interpreter at a felony trial is no small
thing, the defendant still enjoys at least the assistance of counsel. Before the
grand jury, a target has no such help. And Congress, when amending the CIA in
1988, expressly voiced concern that language confusion in grand jury proceedings
can lead to erroneous indictments for perjury, exactly what Mr. Hasan contends
occurred here. As the House Report accompanying the amendment to the CIA
that extended the right to an interpreter to grand jury proceedings explained:
Nowhere in the American system of justice is there more potential to destroy
a persons reputation than through an ill-founded indictment. There has been
one celebrated case where poor language interpretation during grand jury
proceedings led to an inaccurate indictment for perjury. Accordingly, this title
would extend the use of court interpreters to grand jury proceedings.
H.R. Rep. No. 100-889, at 58 (1988), as reprinted in 1988 U.S.C.C.A.N. 5982,
6018.

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Our case law, too, confirms that leaving unresolved apparently

contradictory rulings on issues of similar consequence is legal error. In United
States v. Atencio, 476 F.3d 1099 (10th Cir. 2007), the district court adopted
findings in a presentence report (PSR) that the defendant had regularly
abused his girlfriend, as well as the inconsistent findings in an Addendum to the
PSR, which indicated that the defendant had not engaged in a pattern of beating
his girlfriend. Id. at 1106. Based on these contradictory findings, the district
court found the defendant had a history of abusing women and varied its sentence
upwards on that basis. Id. We held that the district court plainly erred [by]
failing to resolve the conflict, reasoning that [t]his error deprived [the
defendant] of his substantial due process right to a ruling on the disputed issue,
which may have undermined a significant basis for the variance and resulted in a
lower sentence. Id. at 1107; see also United States v. Wolfe, 435 F.3d 1289,
1300 (10th Cir. 2006) (remanding for the district court to reconcile unobjected-to
conflicting factual statements contained in a PSR). Much the same might be said
here: to leave the conflicting findings about Mr. Hasans language abilities
unresolved poses the risk that he was deprived of a right guaranteed by Congress
for the declared purpose of minimizing the grave consequence of a mistaken
indictment.
Of course, we may venture to affirm a district court for any reason
supported by the record, Proctor v. United Parcel Serv., 502 F.3d 1200, 1206
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(10th Cir. 2007), and the government urges us to do just that on the basis that Mr.
Hasan well understood what was asked of him during the grand jury proceedings
and asked for clarification when he did not: [I]t was obviously apparent to [the
prosecutor] that Hasan did not need an interpreter because he continued the
questioning without an interpreter and Hasan asked questions when he did not
understand the meaning of a word, Govt Br. at 31.
On the record now before us, however, we can hardly say that Mr. Hasans
comprehension is obviously apparent. The record contains a welter of
conflicting evidence on both statutory steps. On the one hand, in support of its
March ruling, the district court rightly explained that Mr. Hasan had been in the
United States for nine years; had been employed both as a security guard and as a
school bus driver, occupations that would require him to communicate in English;
had successfully completed five English proficiency courses, as well as two
commercial driving tests in English; and had married an American who does not
speak Somali. On the other hand, in support of its April ruling, the district court
expressed concerns that defense counsel was unable to effectively communicate
with his client and that Mr. Hasan would be unable to follow exchanges between
witnesses and attorneys during trial. And the record does reflect that Mr. Hasan
is a native speaker of Somali; the district court received Dr. Hallecks pretrial
testimony that a native speaker of a language other than English with Mr. Hasans
educational background would have difficulty mastering a secondary language;
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and Mr. Hasans grand jury testimony does evidence some degree of confusion
and trouble with the English language. See Appendix A.
In light of the evidentiary support for both the district courts initial ruling
that no interpreter was required and in particular for its subsequent ruling that one
was required due to concerns about Mr. Hasans ability to communicate in
English, we are in no position to suggest the record definitively tilts in the
governments favor. To be sure, the fact that the record exhibits some unresolved
contradictions may well be attributable to Mr. Hasans failure to argue clearly for
the CIAs application to the grand jury context a failure he, if not the
government, readily concedes. And, on remand, the district court may issue
factual findings that resolve such tensions and results in a ruling for (or against)
the government. The district court may also be able to supply some plausible
reason to distinguish between Mr. Hasans trial and grand jury appearances or to
reconcile its prior rulings. 7 We offer no opinion on what the ultimate disposition
of this case will be. But we do hold that only the district court can, in the first

For example, while Mr. Hasan pressed his initial motion for an
interpreter at trial, as well as his motion for reconsideration, under the CIA, it is
at least possible the district court, although it never said so, thought that (i) the
CIA did not require an interpreter because Mr. Hasans primary language was
English, as it had earlier concluded, but (ii) it would nevertheless exercise its
inherent authority to appoint one. See Fed. R. Crim. P. 28 (providing that a court
may appoint an interpreter). But this is all a matter of speculation, and we pass
no judgment on its plausibility or whether it might survive review.
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instance, make the factual findings on the CIAs two statutory steps that are
essential to resolving the discrepancies currently apparent in this record.
B
The error we discern in this record qualifies as plain. Taylor, 514 F.3d at
1100. To affirm, we would have to let stand an apparently inconsistent
application of a statute that Congress has unequivocally instructed us to apply
consistently to trials and grand juries. See 28 U.S.C. 1827(d)(1), (j); supra
Section III.A. We would, in effect, have to ignore the fact that, although the
district court found Mr. Hasan was apparently entitled to an interpreter at
judicial proceedings instituted by the United States, he received an interpreter
at only one such proceeding. We would also have to ignore our own precedent in
the CIA context finding plain error in arguably even less problematic
circumstances. In United States v. Osuna, 189 F.3d 1289 (10th Cir. 1999), a
defendant whose native language was other than English testified on his own
behalf at trial. On appeal, the transcripts of his testimony suggested language
difficulties had inhibited the defendants ability to communicate with his lawyer
on direct examination and thus to make his testimony understood by the court and
the jury. Id. at 1292. We held the district courts failure to apply the CIA under
such circumstances to be plain error even though defense counsel affirmatively
stated that he did not wish to have an interpreter, and despite the fact that the CIA
was apparently never called to the district courts attention. Id. at 1294 n.4.
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Here, by contrast, not only was the courts attention drawn to the CIA, at least in
the context of trial, the district court affirmatively found an interpreter was
necessary in that context to protect Mr. Hasans rights. And far from disclaiming
a desire to have an interpreter present, Mr. Hasans counsel repeatedly pressed the
need for an interpreter.
C
Our third inquiry on plain error review concerns whether the error affects
the defendants substantial rights. On this score, our precedent instructs that,
somewhat contrary to what the phrase might seem to suggest, we ask only
whether there is a reasonable probability that, but for the error claimed, the
result of the proceeding would have been different. United States v. Andrews,
447 F.3d 806, 811 (10th Cir. 2006) (internal quotation omitted). A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002). We therefore must
ask whether we are in doubt that, had the district court reconsidered both motions
for an interpreter rather than only the one, it would still have denied the motion to
dismiss the indictment. Given the conflicting record evidence on Mr. Hasans
language ability and the district courts apparently conflicting factual findings, we
do indeed have such doubts.
Of course, our standard is couched in terms of probability, and we cannot
say with certainty what the district court will find on remand. See supra Section
- 22 -

III.A. But the factual findings that would mandate an interpreter at trial under the
CIA are very similar to, if perhaps not completely coextensive with, the findings
that would mandate an interpreter at the grand jury. It is this nexus between the
express and seemingly implicit findings supporting the district courts second
order and the factual findings that would mandate the appointment of an
interpreter at the grand jury proceedings that causes us to doubt the outcome of
a reconsideration of the denial of the motion to dismiss. For example, it seems
reasonably probable that if Mr. Hasans primary language was other than
English on April 12, 2006, the date the court appointed an interpreter, his primary
language was also other than English in April and November of 2005, the dates of
the grand jury proceedings. And if Mr. Hasans language difficulties inhibited his
communication with his own attorney at trial, then it again seems reasonably
probable that his communication with a prosecutor in the grand jury proceedings
would also be inhibited. Neither does the government contest that, if the CIA did
require appointment of an interpreter during the grand jury proceedings,
suppression of Mr. Hasans testimony and dismissal of the indictment is the
appropriate remedy. See supra note 6. Under these circumstances, and in the
current absence of a ruling from the district court reconciling the two sets of
seemingly inconsistent factual findings, we believe Mr. Hasan has indeed shown a
reasonable probability that his motion to suppress and dismiss would have been
granted had the district court reconsidered both motions for an interpreter.
- 23 -

D
Under the final prong of our plain error test, we may provide relief only if
the district courts error seriously affects the fairness, integrity, or public
reputation of judicial proceedings, Taylor, 514 F.3d at 1100, but we believe this
test is easily met here. When Congress amended the CIA to apply to grand jury
proceedings, it did so specifically to reduce the chances of false perjury
indictments spawned by simple language difficulties, see supra Section III.A, and
there surely can be few matters that so directly affect the fairness, integrity, or
public reputation of judicial proceedings as the reliability of our criminal
indictments. Neither can there be any question that this case implicates these
very concerns. The statute under which Mr. Hasan was indicted required proof
that he knowingly offered false grand jury testimony. If the inconsistencies in his
testimony were instead the product of honest communication problems caused by
the lack of a statutorily-mandated interpreter a possibility the district courts
reconsidered order appointing an interpreter at trial makes reasonably probable
then we may be faced with the intolerable injustice of a man wrongly accused.
IV
On remand, the district courts inquiry ought to follow at least these two
steps, although of course either may be dispositive if not resolved in Mr. Hasans
favor. First, it should consider whether, at the time of the grand jury hearings,
Mr. Hasan spoke only or primarily a language other than the English language.
- 24 -

28 U.S.C. 1827(d)(1)(A). As the district court correctly perceived, this inquiry

is not resolved simply by asking whether Mr. Hasans native language is other
than English. Neither do we think the statute concerns itself with primacy in the
sense of which language the defendant speaks most frequently; instead, it seems
to us that the term primarily in this statute seeks to measure the defendants
comparative ability to speak English.
The Oxford English Dictionary defines the word primarily as [i]n the
first order in time or temporal sequence, or as [w]ith reference to other than
temporal order: In the first place, first of all, preeminently, chiefly, principally;
essentially. XII Oxford English Dictionary 472 (2d ed. 1989). While the former
definition could suggest native language, or the language first learned, we
believe the structure of the statute makes clear that Congress intended the latter
definition of the term focused on comparative ability. The CIA extends the right
to an interpreter to two classes of people: those who speak only or primarily a
language other than English, and the hearing impaired. 28 U.S.C.
1827(d)(1)(B). The fact that the right is extended to the hearing impaired
suggests that Congress was not concerned about the frequency with which one
speaks English, or whether one is a native speaker; a hearing impaired person in
the United States might well be a native English speaker and speak English on a
daily basis, but might not be able easily to understand or communicate in English.
Thus, it seems to us the question the statute poses concerns the ability to
- 25 -

communicate. Confirming this conclusion, reading the word primarily to mean

native would violate a cardinal rule of statutory construction by rendering
surplusage the word only in the statutory phrase only or primarily a language
other than English. See, e.g., Hill v. Kemp, 478 F.3d 1236, 1247 (10th Cir.
2007). Whether a witnesss native language was the only language he spoke
would be irrelevant, because a witness able to speak only a language other than
English would always have as his native language a language other than English.
Second, if the district court finds that at the time of the grand jury
proceedings Mr. Hasans primary language was other than English, it must
determine whether the lack of an interpreter during his testimony inhibited his
comprehension of the proceedings or communication with . . . the presiding
judicial officer, [or his] comprehension of questions and the presentation of . . .
testimony, 28 U.S.C. 1827(d)(1), to such an extent as to have made the
[hearing] fundamentally unfair, Osuna, 189 F.3d at 1293. This is itself a twostep inquiry. First, the district court must assess whether comprehension or
communication was inhibited during his grand jury testimony, or in other words,
whether the second prong of the statute is met. If it is met, then it was error for
the prosecutor to fail to appoint an interpreter.
If the district court does find error by the government, the court must then
ask whether the error rendered the grand jury proceedings fundamentally unfair.
Id. To be sure, the term fundamental fairness (or unfairness) is far from self- 26 -

defining, but neither are we entirely devoid of guidance about its scope and
import. In the CIA context, courts coming before us have explained that an
inquiry into fundamental fairness focuses on whether the purposes of the Act
[comprehension of the proceedings and the ability to effectively communicate]
were adequately met. United States v. Valladares, 871 F.2d 1564, 1566 (11th
Cir. 1989) (Powell, J., sitting by designation); United States v. Sanchez, 928 F.2d
1450, 1455 (6th Cir. 1991), overruled on other grounds by United States v.
Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002); United States v. Edouard, 485
F.3d 1324, 1341 (11th Cir. 2007). Minor deviations from ideal communication
therefore have been held not to render a proceeding fundamentally unfair. United
States v. Huang, 960 F.2d 1128, 1135-36 (2d Cir. 1992); United States v. Joshi,
896 F.2d 1303, 1309 (11th Cir. 1990). And the Supreme Court has instructed, in
applying a similar standard to ineffective assistance of counsel claims, that the
standard means courts should ask whether, having found error, the result of the
proceeding was nonetheless reliable. Strickland v. Washington, 466 U.S. 668,
687 (1984); see also Kimmelman v. Morrison, 477 U.S. 365, 393 (1986) (Powell,
J., concurring). Thus, the court must determine whether, despite any error, the
proceeding nevertheless was able to reliably serve its function, Rose v. Clark,
478 U.S. 570, 577-78 (1986), which in the case of a grand jury proceeding is both
to ascertain the existence of probable cause to believe a crime has been

- 27 -

committed as well as to protect citizens against unfounded criminal

prosecutions. United States v. Calandra, 414 U.S. 338, 343 (1974). 8
***
Congress has provided witnesses who meet certain requirements with a
statutory right to an interpreter at all proceedings instituted by the United
States. In deference to this legislative command and our precedents, the district
court must consider whether its findings and conclusions leading to its
appointment of an interpreter at trial apply to Mr. Hasans grand jury
appearances, and we remand this matter for such a determination as well as any
other proceedings the district court deems appropriate that are not inconsistent
with this opinion.
So ordered.

Having determined that a remand on the CIA question is required, we

decline to reach Mr. Hasans separate challenge to the sufficiency of the evidence
to support his convictions. If the district court finds that the CIA required that an
interpreter be available to Mr. Hasan during his grand jury testimony, then the
transcripts will be suppressed and the indictment dismissed, rendering
consideration of the convictions themselves unnecessary. Meanwhile, if the
district court determines that, the factual basis for appointing an interpreter at
trial notwithstanding, Mr. Hasans testimony before the grand jury was not
rendered fundamentally unfair by the lack of an interpreter, Mr. Hasan may
raise his sufficiency challenges again on appeal, as well as any claims that may
arise from the district court proceedings on remand.
- 28 -

Appendix A *
On April 5, 2005, the following exchanges occurred:
Q:

Now, as you I think I had asked you a question about whether you
had been harmed before you came to the country. You mentioned
your brother being dead and you mentioned your father today you
mentioned that your father was shot. Any harm come to you?

A:

Whats the meaning harm?

Q:

Hurt. Were you injured, were

A:

No.

Q:

Nothing; right?

A:

Nothing.

Q:

Okay. Do you recall having given the answer to, Do you have any
fear or concern about being returned to your home country or being
removed from the United States, and your answer was, I was beaten
up four months ago?

A:

Yeah, beaten up, but I they didnt shot me or break me my my

body. I mean, I didnt get hurt, but they beat me up.

Q:

So now your answer is that you were beaten, but you werent
harmed?

The portions of Mr. Hasans testimony quoted in Appendices A and B are

reproduced exactly from the transcription of Mr. Hasans grand jury testimony
contained in the record.
- 29 -

A:

Yeah, I think so. Yeah.

Q:

And that beating, that didnt cause you any harm; right? Cause you
concern; correct?

A:

Whats concern mean?

Q:

Fear. Caused you to be so fearful that you couldnt return to

Somalia; correct?

A:

Yeah. And I was running, too, because I know they were trying to
kill everybody.

Addendum of Exhibits, Govt Ex. 6 at 15-16.

Q:

Do you recall having given the answer, One day, four of my brothers
and father were killed?

A:

No, my father didnt say he got killed.

Q:

So if the interview transcript reflects that thats what you said, they
just got it wrong?

A:

No, I didnt say my father got killed. I said my father got shot on the
left leg.

Id. at 18.
Q:

Your answer then was, Well, this was another smaller brother who
was killed on account of tribal hatred. Do you remember having
given that answer?

A:

Whats that mean?

- 30 -

Q:

You gave the answer, so you tell us what is means. Ill read it again,
This was another smaller brother who was killed on account of tribal
hatred. So youre telling the investigator whos asking you about the
discrepancy between the statement you made at the airport when you
first got caught and the statement at this time in 97 when youre
being interviewed where you alegedly said your brothers were killed
two years ago. Youve told us today only one brother was killed and
yet you answered, This was another smaller brother who was killed
on account tribal hatred?

A:

That was before the war, he got killed on a car you mean, hit by a
car.

Q:

Do you recall having been asked the question: Were you ever
tortured in Somalia? Do you remember that question?

A:

No.

Q:

Were you ever tortured in Somalia?

A:

What does it mean, tortured?

Q:

Did anyone in Somalia do thing to you that hurt you physically?

A:

Yeah.

Q:

What did they do to you?

A:

Killing my brother, shot my father, try raping my sister.

Q:

Im talking about you.

- 31 -

A:

About me?

Q:

Yeah. What happened to you?

A:

Beaten up and chasing me, trying to kill me.

Q:

What injuries did you receive as a result of having been beaten as

you now claim?

A:

Whats that mean?

Q:

How were you hurt by being beaten?

A:

Just break my teeth and I was trying to run away from them.

Id. at 20-21.
Q:

When you had the allergy problem with your eyes, was it terribly
painful?

A:

Sometimes. Sometimes I used to wake up going to school closing

my eyes with a pen and couldnt see until it gets dry, afternoon, 1:00.

Q:

My question was: Did it hurt? Was it so painful to you to have

allergies that you you wanted to use that as some basis for staying
in the country?

A:

Because of that, use to stay in the country?

Q:

Yes.

A:

No, because I dont have anywhere else to go. If I go back to my

country, they kill me.

- 32 -

Q:

No, my my question is: Was the problem of your allergies so

painful, did it hurt so much that you wanted to use that as a reason to
stay I this country?

A:

I couldnt understand it.

Q:

Did you use your eye problem in order to stay in this country?

A:

Still I didnt get it.

Id. at 22.
Q:

Did you get a defective or improper equipment in December of 02?

A:

Whats whats that again?

Q:

Broken equipment, like a taillight or headlight or something like

that?

A:

No.

Q:

No?

A:

No. No.

Q:

Okay. Did you get a defective or improper equipment in the third

month of 2003?

A:

Improper?

Q:

Defective or improper equipment?

A:

Whats that, improper equipment?

Q:

The same thing like you have

- 33 -

A:

I I remember it, I guess, in 2003 improperly and, like, you know

getting out of the line. Couldnt control the car, but I didnt break a
light.

Id. at 29.
Q:

How would you describe your relationship with Muhidin

Mohammed?

A:

I cant say. He has last family name and hes good with the family.
There was good relationship between them.

Q:

Who is Aweis M. Mohammed? And thats A-W-E-I-S M.

Mohammed.

A:

Hes hes a family member, too. I think they are almost brothers,
like, cousins two cousins.

Q:

All right. What is his relationship to you, if any?

A:

Hes with the he knows the family more than me.

Q:

All right. Are you telling this Grand Jury that hes not part of the
family, but that he is a friend of the family?

A:

No, hes the last names the same. I mean, the last name is the
family name, but all I know is all is he knows more about my dad.
He knows a lot.

Q:

In our country, there can be a lot of people with the last name of
Jones, but it doesnt mean they are related; right?
- 34 -

A:

(Nods head.)

Q:

They can be friends, but they dont necessarily they arent

necessarily part of the same family. Do you understand what Im
saying?

A:

Yeah.

Q:

All right. My question to you is: Aweis M. Mohammed, is he family

by blood, right, or is he just a friend of yours and your family?

A:

Hes I can say that hes part of the family, but part of the family
from far. From I can you know, from like like, you can say
whenever you used to see them or the only person we see is him. We
didnt see his family.

Q:

All right. I need for you to tell me whether he is a friend of the

family or whether he is a member of the family. Is he a brother?

A:

No.

Q:

Is he a cousin, is he an uncle, or is he just a friend of the family?

A:

I can say hes like uncle.

Q:

Hes like an uncle?

A:

Yeah.

Q:

Is he an uncle, not like an uncle? Is he an uncle or not by blood? Is

he related to you by blood?

A:

Yeah.
- 35 -

Q:

Okay. And you say he is an uncle?

A:

I can say an uncle, but hes far from the family. But he hes part of
the family, but from far.

Id. at 31-33.
Q:

All right. Id like to give you an opportunity to clarify any answer

that you have given today under oath, add to any answer, change any
answer in any way if you chose to do so. This is your opportunity if
you feel that there is something that you need to make clear,
something that you need to change in an answer that youve given,
this is your opportunity to do that if you feel a need to do it.

A:

Actually, I dont I dont remember anything and I dont know how

to change it how to say it.

Q:

Is there have you been able to understand what I have asked you?

A:

Not sure about it, but I try to understand it.

Q:

Okay. Is there anything that you can recall that you didnt
understand.

A:

I dont remember. I cant remember all the questions at one time.

Q:

All right. Are you going to school in this country?

A:

I was in a school.

Q:

What school?

- 36 -

A:

I was in the auto school, nighttime, and then I went to ESL. Thats
why I got my English better. I went and I finished five semesters.

Q:

Five semesters of English?

A:

Yeah, I have a certificate to five of them.

Q:

Did you do well in the English school?

A:

Yeah.

Q:

So youre pretty able to understand what people say to you in

English?

A:

Not, like, 100 percent. I can say, like, 40 percent and if I dont
understand, I tell them, Whats that mean? Theres a lot of words
that are hard for me, I cant understand it.

Q:

Okay. Was there anything that I failed to explain to you so that you
felt like you understood it?

A:

Most of them.

Q:

You understood most of them?

A:

Yeah.

Q:

Okay. Is there anything that you you think maybe you didnt
understand?

A:

I dont remember. I mean, its not I can get it I cant say it even.

Id. at 40-41.

- 37 -

On November 7, 2005, Mr. Hasan testified as follows:

Q:

Okay. And when was your brother killed?

A:

Somalia, Indonesia.

Q:

When?

A:

When. When we were there. It was 19 around 1996.

Addendum of Exhibits, Govt Ex. 7 at 10.

Q:

All right. When you were born?

A:

Somalia.

Q:

When?

A:

199 1980.

Id. at 22.
Q:

Do you recall having been interviewed in this Grand Jury previously?

A:

What what do you mean?

Q:

Do you remember having been here before?

A:

Yeah.

Q:

So do you recall telling the Grand Jury that the man who who
brought you into the country, do you remember having answered,
Hes a fat man. I dont know his name really and hes Canadian?

A:

Yes.

Q:

Do you recall having been asked, So a Canadian fat man that you
dont know his name, brought you into this country?
- 38 -

And your answer: Yeah, and actually he took me as his son and who
put me on his uncle because he couldnt hold me there because he
had more than I mean, he couldnt hold me because he had all of
his kids around him and he said, Im going to go ahead and pay this
guy to take you some place safe.
Question: Okay. And it was not true, was it, that you were his son?
Your answer: No, I wasnt his son.
Question: It was not true that he was your uncle?
And your answer: No, he was my uncle.
A:

No.

Q:

He was my uncle?

A:

The person who paid is my uncle, but it was not that person who
bring me

Q:

I think I understand. I think I understand what youre saying. Your

uncle is the one that paid that person?

A:

Yeah.

Q:

All right.

A:

On the person bring me here.

Q:

All right. I I think I see that.

Id. at 23-24.
Q:

What injuries did you receive when they hurt you in Somalia?
- 39 -

A:

There is no injury, just beating me up. There was beating up and I

had some blood in my mouth.

Id. at 33.
Q:

Aweis Mohammed, A-W-E-I-S, is he related to you?

A:

Yes.

Q:

How?

A:

Actually, its from he led me from far of the family. Its the same
group of family. Hes from Fagi, too. And he used to live here, but I
dont know. He used to live in Virginia, but I dont know where he
lives now. I didnt see him a long time ago.

Q:

Is he a cousin?

A:

No.

Q:

He is related to you by blood?

A:

What do you mean, by blood? Hes as I said, like hes far from the
family. Like he have the same name of the family.

Q:

Yeah.

A:

So hes related to me like that. Like and all from what I dont
know how to say this, like a family name.

Q:

Okay.

A:

All together.

Q:

Let me see if I can get at this. You have a mom and a dad; right?
- 40 -

A:

Yes.

Q:

They have moms and dads?

A:

Yes.

Q:

Right. And they had moms and dads?

A:

Yeah.

Q:

Okay. Is he related to you through blood?

A:

Yes.

Q:

Okay. And how?

A:

How?

Q:

Is he a cousin, is he an uncle, is he you know whose son

A:

You can say

Q:

is he?

A:

You can say kind of cousin, but its not a cousin. Its far from the
family.

Q:

Okay. So I asked you is he a cousin and your answer is, I can say
hes like uncle?

A:

Uncle, cousin, I think is the same thing.

Id. at 36-38.

- 41 -

Appendix B
Count I
Count I rested on the following testimony. At the April hearing, Mr. Hasan
testified:
Q:

Whats the name of your brother that had been killed?

A:

Sadad.

...
Q:

And how long before 1997 when you filled out this form had your
brother been killed?

A:

It was around as I remember it, it was 92, 93.

Q:

Okay. And who killed him?

A:

One of those who shot him, the Somalian people, the one that was
making war in the country.

Addendum of Exhibits, Govt Ex. 6 at 10.

In November, Mr. Hasan testified as follows regarding his brother Sadads
death:
Q:

Whats the name of your brother that had been killed?

A:

Sadad.

Q:

Whats the name of your brother that was killed in the car wreck?

A:

Thats thats Sadad. Thats my brother Sadad and the other is

Mohammed.
- 42 -

Q:

The one that got shot. And what year did he get shot?

A:

1996.

Id., Govt Ex. 7 at 26.

Count II
Count II rested on the following testimony. At the April hearing, Mr.
Hasan testified:
Q:

Were you ever tortured in Somalia?

A:

What does it mean, tortured?

Q:

Did anyone in Somalia do things to you that hurt you physically?

A:

Yeah.

Q:

What did they do to you?

A:

Killing my brother, shot my father, try raping my sister.

Id., Govt Ex. 6 at 20-21.

In November, Mr. Hasan testified that he had no memory of anything
happening to his sister in Somalia:
Q. Did anything happen to your sister in Somalia?
A. No, she she was she moved from Somalia a long time ago. She was
she was in Canada.
Q. Okay. But but when she was in Somalia, did anybody try to do hurt
her?

- 43 -

A. I dont remember because I was staying home always. They always

keep me at home.
Q. You dont remember?
A. No.
Id., Govt Ex. 7 at 32.
Count III
Count III rested on the following testimony. At the April hearing, Mr.
Hasan testified:
Q:

What injuries did you receive as a result of having been beaten as

you now claim?

A:

Whats that mean?

Q:

How were you hurt by being beaten?

A:

Just break my teeth and I was trying to run away from them.

Id., Govt Ex. 6 at 21.

In November, Mr. Hasan testified that although he had been beaten and hit
in the mouth, his teeth had not been broken:
Q:

What injuries did you receive when they hurt you in Somalia?

A:

There is no injury, just beating me up. There was beating up and I

had some blood in my mouth.

...
Q:

Did they break any bones?

- 44 -

A:

No.

Q:

Did they break any teeth?

A:

No.

Id., Govt Ex. 7 at 33.

Count IV
Count IV, of which Mr. Hasan was eventually acquitted, rested on the
following testimony. At the April hearing, Mr. Hasan testified:
Q:

All right. So when they asked you in the interview, what is your
tribe or clan, you told them Berdirdi?

A:

I told them Balkey. Balkey. My family name is Balkey.

Id., Govt Ex. 6 at 17.

However, in November Mr. Hasan testified that his family name was Fagi.
Q:

Okay. What is your family name?

A:

Fagi.

Q:

How do you spell it?

A:

Fagi. I think, F-A-G-I or Y, last letter.

Id., Govt Ex. 7 at 31.

- 45 -